Regulatory Cynicism at Work

The US Environmental Protection Agency is expected to publish new proposed rules setting air quality standards for soot this week under terms of a tentative settlement agreement reached with eleven states that sued EPA for NOT acting to promulgate rules for fine particulate matter under the Clean Air Act.

If you are curious about the air quality where you live you can visit the EPA Air Now website and check out the daily readings being reported. For most of us the map looks green (green is good remember) and the urban areas tend to shade yellow (moderate) to orange (unhealthy for sensitive groups). This is a testament to good work that US EPA has done over the years to clean up our air and water and the broad public support there is for such action.

By now you are wondering why I am praising the US EPA? I spend so much time writing about the torture of endless regulatory uncertainty and the unintended costs and consequences of a regulatory regime that fails to balance the costs of new regulation with the benefits and the public interest. US EPA is often called the poster child for out of control regulatory policies. But these eleven states represented by their attorneys general are classic examples of the dysfunction and cynicism at work today in the regulatory process.

So listen up.

The proposed soot regulation of fine particulate matter is a classic case of the hijacking of the regulatory process by environmental advocates, pandering attorneys general and other interveners with no economic stake in the matter (except they get paid by endlessly suing and coercing settlements out of companies and government entities eager to avoid the ‘perp walk’ of being labeled a polluter. In the case of fine particulate matter the US EPA has focused on the problems as far back at 2005. In 2007 US EPA finalized the 2.5 ppm Clean Air Fine Particle Implementation Rule setting requirements for state plans to meet the 1997 national air quality standards for fine particle pollution.

But in February 2011 eleven states including New York, California, Connecticut, Delaware, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont and Washington sued US EPA to step up the pace for new soot rules. This, of course, provided each state Attorney General will endless opportunities to generate press stories wrapping themselves in the green flag.

Here is an example:

“Clean air is a public right, and standards that protect it are a necessity,” Eric T. Schneiderman, New York State’s attorney general, said in a statement. “Every day, air pollution from soot risks the health of more than one-third of Americans, including our most vulnerable –- children, the elderly and the sick. These risks are simply unacceptable.”

Really? Take a look at the map of airnow.gov, the daily air quality reports again. Does this look like the sky is falling on air quality that the New York AG paints in his press release?

Working at the US EPA must be torture. Putting up with an endless stream of politicians looking to score points and generate headlines. Environmental interveners in regulatory proceedings or litigators are hijacking the agencies (plural because this is a problem with all regulation not just at US EPA) resources and driving its agenda usually to the outer limits of reasonableness in pursuit of their own political or environmental agenda.

What is being left out is the public interest. What is being ignored is common sense. What is missing is BALANCE between the need for reasonable regulations to protect the public interest and assure our environmental quality and the equally important public interest in economic growth, job creation, making an environment for business predictability and certainty so that capital will be invested, better technology will be used, and our enviable pace of environmental quality improvement can be sustained.

What we’re doing now in allowing the regulatory process to be hijacked is not sustainable.